What
I am focused on here is patients, and in particular reciprocal healthcare
between the UK and the EU-27 post-Brexit. There are two key issues here:

-The position of UK pensioners who have retired
to another EU country, or will do so in the future;

-The EHIC for emergency care when visiting
another EU country, or when people from EU-27 countries visit the UK.

The
question of Brexit, health, and ‘people’ of course also includes NHS and social
care staffing. In that regard, the key concerns
are about the EU-27 and EEA nationals who currently work in the UK’s NHS and social
care.Their position under the
Withdrawal Agreement (WA) is the same as that of EU-27/EEA nationals who work
in other sectors of the UK economy, and others
have analysed their position already.

This
is the first time we have had any legal text on withdrawal available for
analysis, apart from the proposed clauses on the transitional (or
implementation) period, which were analysed here.
The text is complex, and like all legal texts, its full implications will take
time to emerge. So this is only a first take, and I may well have got things
wrong: if you spot anything I’ve missed or misunderstood, please be in touch.

I
recognise, of course, that the process of the UK leaving the EU is a
negotiation, that this text is yet to be adopted by the EU-27 Council, much
less agreed between the EU and the UK, and that ‘nothing is agreed until
everything is agreed’. It would be prudent, therefore, for us also to plan for
a ‘no-deal’ Brexit, where we leave without any Withdrawal Agreement.

Finally,
by way of introduction, I should say that I would love to be able to compare
this analysis with the UK’s preferred legal text. Sadly none is currently
available. And the Prime Minister’s latest
speech, on 2 March 2018, does not cover reciprocal healthcare explicitly at
all. There is one of the PM’s ‘five tests’ that is relevant though: ‘reaching
an enduring solution’. What follows shows that, should the UK agree to the text
as proposed by the European Commission, for at least some aspects of the EU-UK
relationship relevant to health, the solution proposed will endure for much
longer than some might fear (or hope for).

The timeline:

The
text proposes three periods of time, each of which involves different legal
rights and obligations:

-now (while the UK is a Member State of the EU);

-a transition period (which the UK government
calls an ‘implementation’ period), which starts when the WA enters into force on
30 March 2019 (Article 168) and ends on 31 December 2020 (Article 121); and

-thereafter.

Whether
the precise dates survive the negotiation or not, we are talking about at least
three different timeframes, with the associated legal complexity.

It is not going to be
easy for people to understand what their rights are, how to enforce them, or
what obligations governments (the UK, and those of the EU-27) are under.

I
want to suggest in what follows that, implicit in the text of the WA as
proposed, is a fourth period of time – quite a long way into the future – where
no further rights and obligations apply.

Where
we are now:

To
grossly oversimplify, patients currently enjoy rights to cross-border
healthcare in the EU under four types of EU arrangements: S1 for residents in
another EU country; S2 and the Patients
Rights Directive for planned care; and EHIC for visitors.Because access to the UK NHS works on the
basis of residence, rather than having paid tax or social security into the UK
system per se, EU-27/EEA nationals who meet the NHS
‘ordinary residence’ test in the UK de facto have a set of rights in
domestic law too. (NB, the hyperlink is to the rules for England: they are
different in Scotland,
Wales
and Northern Ireland.)

The
EU law entitlements essentially work on the basis of coordination of the very
different social security systems across the EU. They are part of EU law on
free movement of people and EU citizenship, but they do not depend on harmonisation
(or ‘regulatory alignment’) of national rules. Indeed the EU Treaties (in
Article 168(7) TFEU) rule out such harmonisation, referring to Member States’
responsibilities for “the definition of their health policy and for the
organisation and delivery of health services and medical care”, including “the management
of health services and medical care and the allocation of the resources
assigned to them.” Instead, the EU coordination rules operate to smooth the way
for people who cross the EU’s internal borders – to work, to study, to retire,
to visit. They protect people from the difficulties that would otherwise arise
from the differences in the organisation of social security, and access to
benefits, including access to healthcare within national health systems.

One
way to think about it is to imagine an EU citizen, and her family, moving
around the EU, working and paying into the social security system in each state.
As she moves, she accrues a kind of ‘backpack’ full of the benefits they have
earned, which she and her family can then put together and call upon if they
need them, for instance, when they retire, or if they become too unwell to
work, or otherwise unemployed. (That’s called the principle of ‘portability’
and of ‘aggregation’). Another way to think about it is to realise that when an
EU citizen is in a different Member State from their ‘home’ Member State (who
is responsible for protecting them from the life events that social security
systems are there to help with), they are treated as if they were a national of
the Member State they are in. (That’s called the principle of
non-discrimination.)

Finally,
to make sure that people are neither able to ‘double count’ benefits, nor fall
through the gaps, for each person there is a single ‘competent state’, which is
responsible for paying. That responsibility is irrespective of the country
which provides the benefit, or in the case of healthcare, medical treatment.
(That’s called the ‘single state rule’.)

So,
the British pensioners who have retired to the south of Spain are able to
access the Spanish health care system on the basis of the rights they have
earned when they worked in the UK. The UK pays for that healthcare; it’s
provided by Spain, and it’s provided on the same basis as for Spanish nationals.

All
of this is supported – as you might imagine – by a complex set of
administrative arrangements, supported by the EU. An Administrative Commission
for the Coordination of Social Security Systems is made up of one
representative of each of the Member States, plus the European Commission. It
deals with administration and interpretation of the rules, and promoting
collaboration (Regulation
883/2004, Articles 71 and 72). In
practice, it relies on a network of national competent authorities, which share
information so that they can effectively coordinate their activities. There is
an Electronic System
which supports exchange of social security information. EU data protection law
applies here.

Coordination
of social security is also an area where there is a great deal of litigation:
the rules are complex, and the CJEU is regularly called on to interpret what
they mean.

What the Commission text proposes: who is
covered?

Just
to get this out of the way first. There is – rightly – a huge amount of
attention being paid to the scope of the proposed provisions on citizens rights
under Title I of Part Two of the draft WA. But what matters for this blog is
that who is covered by those provisions is explicitly ‘without prejudice to
Title III’ of this Part of the WA, which is on social security systems.

So,
if the WA is agreed as proposed, there will be one group of people who have
rights to reside (Articles 12-19), to be employed or self-employed (Articles
20, 22-27), and to be treated equally (with some significant exceptions) to
nationals (Article 21). There will be a different group of people who have
rights under the coordination of social security provisions. One human being
might be in both groups.

Again,
this will be complex, and it won’t necessarily be easy for people to know what
their rights are.

Who
will be covered? This is set out in Article 28. The text echoes the text of the
key EU Regulation (883/2004),
Article 2. The basic idea is to include people who ‘are or have been subject to
the legislation of’ either the UK or an EU-27 Member State. The legislation
here is the social security legislation covered by Regulation 883/2004. For the
avoidance of doubt, Article 28 (3) says ‘ “legislation” means legislation as
defined in Regulation 883/2004, Article 1 (l)’. That provision says
‘legislation’ means ‘laws [etc] relating to the social security branches
covered by Article 3 (1)’. Those include ‘(a) sickness benefits (ie
healthcare); maternity and equivalent paternity benefits; invalidity benefits;
old age benefits (ie pensions) … unemployment benefits, and family benefits’.
From the point of view of health, the key things that matter are that
healthcare is covered, and also that pensions are covered.

Regulation
883/2004 covers EU citizens, stateless persons and refugees, members of their
families, and survivors. It also covers nationals of other countries who are
not already covered by the Regulation solely because of their nationality. What
is important for cross-border health care is that you do not have to be or have
been resident in another Member State to your home country to fall within the
scope of the Regulation. It is enough that you are ‘subject to the legislation’
of any Member State. Everyone who meets the UK ordinary residence test for
access to the NHS, for instance, is ‘subject to the legislation’ of the UK on
this matter. Everyone across the EU, including in the UK, who is entitled to an
EHIC card is ‘subject to the legislation’.

Unlike
the general WA provisions on EU citizenship, which only give rights to those
who have exercised their rights to free movement (for instance, by residing in
a Member State of which they are not a national), these provisions give rights
to everyone who is subject to social security legislation in either the EU27 or
the UK.

What the Commission text proposes: what are
their rights?

Article
28 (4) secures continued aggregation of rights accrued under periods of social
security insurance for EUCs, UK nationals and others, who have worked or
resided in an EU Member State or the UK before the end of the transition
period. This is reinforced by Article
29, which says that all the ‘rights and principles’ of Regulation 883/2004, and
all the rest of EU social security coordination legislation, ‘shall apply’. It
explicitly covers the principles of portability, aggregation,
non-discrimination, and prevention of overlapping benefits/single state rule.

The
logical consequence of this is that everyone who is within the scope of this
part of the WA (ie who has accrued rights before the end of the transition
period) will be able to continue to enjoy the rights they currently enjoy in EU
law, even after the end of the transition period. It would mean that EU-27
nationals, and others, in the UK, would be able to rely on benefits that they
have accrued when working in EU-27 Member States. Of course, they would need to
be lawfully resident in the UK, and that is covered by the other parts of the
WA.

It
would mean that those people within the scope of this part of the WA would be
able to continue to rely on the existing routes for planned cross-border
healthcare (S2 and the Patients Rights Directive). For instance, UK pensioners
in Spain would be able to continue to rely on the S1 system to receive
healthcare in Spain. And – crucially for reciprocal healthcare – EU-27 visitors
to the UK, and UK nationals when visiting EU-27, and others within the scope of
this part of the WA, would be able to continue to rely on their EHIC cards for
emergency, unplanned care.

In
other words, for everyone who is now within the system of EU coordination of
social security, this would continue. All of it.

However,
this interpretation doesn’t seem to hold true for cross-border healthcare when
we look at the rest of Article 29. For planned healthcare, where someone has
begun a course of medical treatment in a Member State other than the one which
is ‘competent’, before the end of the transition period, ‘that person shall
have the right to continue the treatment until its end’ (Article 29 (4). ‘Until
its end’ is presumably intended to include all phases of treatment, including
follow up care. The text does not refer to planned healthcare under the
Patients’ Rights Directive; only under Regulation 883/2004. And it implies
(because otherwise it would not be necessary) that access to planned healthcare
that begins after the end of the transition period will not continue.

There
is nothing explicit in the text on EHIC healthcare.

But
there is something on healthcare for
pensioners. It’s in Article 29 (4), which is worth setting out in full.

“If, following the grant of a benefit based on the periods of
insurance, employment, self-employment or residence in accordance with Article
28(3) of this Agreement, the United Kingdom becomes competent for the
healthcare cover of a Union citizen, or a Union Member State becomes competent
for the health care cover of a United Kingdom national, that Union citizen or
United Kingdom national shall be entitled to healthcare cover as set out in
Articles 24 to 30 of Regulation (EC) No 883/2004 and the corresponding
reimbursement procedures shall apply between the United Kingdom and the Member
State.”

Let’s
unpack that. ‘Healthcare cover set out in Articles 24 to 30 of Regulation
883/2004’ is healthcare cover for pensioners. Essentially the rules are that if
someone is entitled to a pension from at least one Member State, they are
entitled to receive healthcare in another Member State in which they reside, on
the same basis as the residents of that Member State. The costs of the
healthcare are borne by the Member State responsible for the pension. This is
the basis of the S1 scheme.

The
word ‘becomes’ is a bit of a puzzle here. A Member State ‘becomes’ ‘competent
for healthcare cover’ of someone whenever they fall within the national rules
on who is covered by their national healthcare system. But Article 29 (4) is
about when a Member State ‘becomes’ competent for healthcare because of (‘following’) the grant of
another benefit – here, pensions.

And,
on its face at least, the provision only applies when ‘the United Kingdom
becomes competent for the healthcare cover of a Union citizen, or a Union
Member State becomes competent for the health care cover of a United Kingdom
national’. In other words, it does not cover the situation where a person,
having worked in the UK all their life, retires to an EU-27 Member State. The
UK has always been competent for that person’s healthcare cover; it hasn’t
‘become’ competent for it.

So
Article 29 (4) only seems to deal with people who are in a cross-border
situation in the sense that they are EU-27 nationals who move to the UK (and
thus fall under the responsibility of the UK’s NHS) or are UK nationals who
move to an EU-27 country (ditto and vice versa), and then subsequently retire,
and seek health care, as if the EU law that applies now still applied. They
would be entitled to the same rights as now. So the EU-27 nationals who come to
the UK to work could then retire home, or to another EU Member State, and have
healthcare paid for by the UK. And likewise UK nationals who go and work in an
EU-27 Member State, and then retire to another EU-27 Member State, or to the
UK, would also have healthcare paid for by that EU-27 Member State in which
they worked. But Article 29 (4) doesn’t deal with the UK pensioners who have
worked all their life in the UK, and then retired to Spain (or another EU
country): the biggest group of recipients of cross-border health care who are
concerned about the effects of Brexit.

So
the question is: which applies – the implications of the general provisions of
this part of the draft WA, or the implications of the text of the more specific
provisions? In general, a more specific legal provision has priority over a more
general one. But given that none of these provisions are explicitly dealing
with the two groups of people with which we are most concerned here, and the
conclusions I am drawing here are only by implication, it’s not at all clear to
my mind what is intended by the draft text.

If
the UK wanted to include the UK pensioners who have worked all their life in
the UK, and then retired to Spain (or another EU country) within the provisions
of this part of the WA, it should seek an amendment or addition to the text.
This could be achieved by replacing the word ‘becomes’ and removing the
cross-border element of Article 29 (4) as it currently stands. The text would
then read:

“If, following the grant of a benefit based on the periods of
insurance, employment, self-employment or residence in accordance with Article
28(3) of this Agreement, the United Kingdom or a Union Member State is
competent for the healthcare cover of a Union citizen or a United Kingdom
national, that Union citizen or United Kingdom national shall be entitled to
healthcare cover as set out in Articles 24 to 30 of Regulation (EC) No 883/2004
and the corresponding reimbursement procedures shall apply between the United
Kingdom and the Member State.”

If
the UK wanted to be clear that the EHIC scheme continues after the end of the
transition period, this would probably require a new provision in the WA. As
I’ve argued above, Article 29 (1) can be read to imply that EHIC will continue:
but if that is what is intended, why not make this explicit? Such a provision
should be based on Regulation 883/2004, Article 19 (the source of the EHIC
system). An additional Article 29 (5) could read:

“A person referred to in Article 28 of this Agreement, and the
members of his/her family staying in a Union Member State or the United Kingdom
shall be entitled to the benefits in kind which become necessary on medical
grounds during their stay, taking into account the nature of the benefits and
the expected length of the stay. These benefits shall be provided on behalf of
the competent institution by the institution of the place of stay, in
accordance with the legislation it applies, as though the persons concerned
were insured under the said legislation.”

And
if the UK (and the EU) want EHIC to continue, there is no reason not to
continue with reciprocal arrangements on planned healthcare too. After all,
under Regulation 883/2004 planned healthcare can only happen with the
authorisation of the Member State which pays: the UK (along with every Member
State) has always had control over this aspect of reciprocal healthcare in EU
law. So Article 29 (3) would also need to be amended, to remove the words
‘before the end of the transitional period’.

What the Commission text proposes: the time
frame

Most
of the provisions in the WA have a tight temporal limitation: they cease at the
end of the transition/implementation period. This is not so for the social
security coordination provisions as proposed by the European Commission.

On
the contrary, none of the Title seems to have any specific temporal element to
it. Article 29 (2) says ‘contributions both before and after the end of the
transition period’ and ‘rights flowing from such periods’ shall be aggregated.
So this Title continues the coordination of social security systems between the
UK and the EU for those people who fall
within its personal scope in perpetuity - indeed as Article 35 explicitly says,
for the lifetime of the person covered.

This
is a very long time, if you consider that the personal scope of this Title
includes not only everyone who falls within Regulation 883/2004 at the time the
WA comes into effect, but also their survivors (widowers and widows) and their
families. The last person to enjoy rights under this part of the WA will be the
person who within its scope who lives the longest. That could be someone who
just enters the workforce, or the baby last born to someone within the scope of
this part of the WA, at the time the WA comes into force.

What the Commission text proposes:
administrative and dispute settlement arrangements

The general
rule in the proposed WA is that the UK will cease to participate in EU
administrative bodies, committees or expert groups, from the start of the
transition/implementation period, ‘unless otherwise provided in this Agreement’
(Article 6). But there is an explicit exception for the coordination of social
security systems (Article 30).

Likewise,
in general, UK access to EU databases, systems and networks ‘established on the
basis of Union law’ (which includes the systems supporting coordination of
social security) will cease at the end of the transition period. But the
proposed WA makes an exception for those systems (Article 30). UK processing of
personal data, both during and after transition/implementation must be in
conformity with EU law (Article 67). That will cover data processing under
coordination of social security.

The
proposal is that administrative cooperation between the EU and the UK on the
coordination of social security continues.The UK will continue to bear its share of costs of the electronic system
for exchange of social security information (Article 30 (2)). However, the UK
will be an ‘observer’ in the Administrative Commission, rather than a full
member (Article 30 (1)).

In
terms of dispute settlement – and bear in mind that EU social security
coordination involves a great deal of litigation – the proposal is that the
CJEU will continue with its jurisdiction, including to hear preliminary
references on interpretation of EU law, throughout transition/implementation
(Article 82). CJEU cases decided during this period ‘shall have binding force
in their entirely on and in the UK’ (Article 85). The CJEU would have
jurisdiction over the WA in general during this period (Article 126). After
this point, it would have more limited jurisdiction over citizens’ rights
issues arising in the UK (including social security aspects) for eight years
after the end of the transition/implementation period (Article 151), and its
jurisdiction over the WA as regards UK citizens in the EU27 would continue
indefinitely. It would also have jurisdiction relating to disputes on
interpretation of the WA indefinitely (Article 162), if those disputes could
not be settled politically. If the interpretation above is correct, and the
temporal reach of this part of the WA is long after transition, this will mean
oversight by the CJEU of one part of the EU-UK relationship well into the
future. Furthermore, the powers of the independent authority tasked to help
enforce the WA as regards EU citizens in the UK would continue indefinitely too
(Article 152).

Summary and key implications

There
are two key issues that people concerned about Brexit and cross-border
healthcare want to resolve:

-The position of UK pensioners who have retired
to another EU country, or will do so in the future;

-The EHIC for emergency care when visiting
another EU country, or when people from EU-27 countries visit the UK.

The
proposed legal text on the WA does not deal explicitly with either of these. By
implication, some of its provisions can be read to guarantee existing EU law
rights well into the future: for the lifetime of anyone who holds such a right
at the end of the transition period. But
other provisions can be read to imply the opposite.

Whichever
is the case, the proposal is to continue cooperation between the EU and UK over
coordination of social security systems (though with the UK in an observer
position), and oversight of the CJEU, well into the future, and certainly long
beyond the end of the transition period.

Whether
this lack of ‘taking back control’ is a price worth paying for the UK should
depend on a range of considerations.The
Department of Health and Social Care should play a key role in making that
determination; and parliamentary oversight of such decisions should be without
question. The Lords EU Home Affairs Sub-Committee will report soon in its Brexit: Reciprocal HealthcareInquiry.
The Commons EU Scrutiny Committee has already
suggested incorporating Regulation 883/2004 (with suitable amendments) into
the WA. It warned
that ‘no deal’ would have potentially devastating effects on the lives of many,
particularly vulnerable people. This point was also noted
by the Commons Health Committee, which concluded (paras 125-6):

“Far from being a drain on the public purse, the provision of
care to UK insured persons in the 27 other member states represents excellent
value to the British taxpayer. Moreover citizens across the EU can readily
access vitally important, high quality healthcare without encountering
financial or bureaucratic barriers. Just as this allows someone from the EU to
work in the UK, it enables a British pensioner to retire to France, Spain or
Italy.

It is in the interest of many hundreds of thousands of British
people living across the EU to maintain simple and comprehensive reciprocal
healthcare arrangements. The Government’s negotiating objective should be
preservation of the existing system of reciprocal healthcare so that EU
nationals in the UK and people insured by the UK in other EU countries can
maintain their access to healthcare.”

4 comments:

Very many thanks for this.It seems that free movement rights were compromised as soon as the result of the referendum became known. When, in your view, might we know for certain what the entitlements to health care will be? When will a UK national be able to decide that it is 'safe' to move to an EU 27 country with the intention to become resident? Or, is it impossible to say given the reference above to the need to also prepare for a 'hard brexit'...?

Thanks for your question. I think the only absolute certainty would be when the withdrawal agreement is ratified by both sides. Even then there's an interesting question of whether it could be denounced (the proposed draft doesn't address this issue). Of course it is possible that the EU27 would apply the withdrawal agreement rules even in the event of 'no-deal', or that a separate deal on EU citizens would be salvaged in that event, but we can't be sure.

Thanks for this excellent expose of a very complex and critical issue which is worrying many of us EU27 citizens wh have all their Social Security coverage in UK due to years of working in UK and paying NI contributions for almost 35 years. Really appreciate your work and explanation of this.Recognising the "Nothing is Agreed....." caveat I will follow this for your future updates as things develop but at least even now there is hope for us. Thanks again for your excellent and clear expose.